European Commission copyright consultation/User-generated content

Text and data mining

European Commission copyright consultation User-generated content

Private copying and reprography

The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission. We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline). Welcome to the discussion! Please help by answering the questions below. Return to the table of contents.

User-generated content

Technological and service developments mean that citizens can copy, use and distribute content at little to no financial cost. As a consequence, new types of online activities are developing rapidly, including the making of so-called “user-generated content”. While users can create totally original content, they can also take one or several pre-existing works, change something in the work(s), and upload the result on the Internet e.g. to platforms and blogs. User-generated content (UGC) can thus cover the modification of pre-existing works even if the newly-generated/"uploaded" work does not necessarily require a creative effort and results from merely adding, subtracting or associating some pre-existing content with other pre-existing content. This kind of activity is not “new” as such. However, the development of social networking and social media sites that enable users to share content widely has vastly changed the scale of such activities and increased the potential economic impact for those holding rights in the pre-existing works. Re-use is no longer the preserve of a technically and artistically adept elite. With the possibilities offered by the new technologies, re-use is open to all, at no cost. This in turn raises questions with regard to fundamental rights such the freedom of expression and the right to property.

A specific Working Group was set up on this issue in the framework of the "Licences for Europe" stakeholder dialogue. No consensus was reached among participating stakeholders on either the problems to be addressed or the results or even the definition of UGC. Nevertheless, a wide range of views were presented as to the best way to respond to this phenomenon. One view was to say that a new exception is needed to cover UGC, in particular non-commercial activities by individuals such as combining existing musical works with videos, sequences of photos, etc. Another view was that no legislative change is needed: UGC is flourishing, and licensing schemes are increasingly available (licence schemes concluded between rightholders and platforms as well as micro-licences concluded between rightholders and the users generating the content. In any event, practical solutions to ease user-generated content and facilitate micro-licensing for small users were pledged by rightholders across different sectors as a result of the “Licences for Europe” discussions.

Question 58

58) (a) [In particular if you are an end user/consumer:] Have you experienced problems when trying to use pre-existing works or other subject matter to disseminate new content on the Internet, including across borders?

(b) [In particular if you are a service provider:] Have you experienced problems when users publish/disseminate new content based on the pre-existing works or other subject-matter through your service, including across borders?

(c) [In particular if you are a right holder:] Have you experienced problems resulting from the way the users are using pre-existing works or other subject-matter to disseminate new content on the Internet, including across borders?

Yes

• Tom Morris
• --Aktron (talk) 18:20, 15 January 2014 (UTC)

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, please explain by giving examples.

• The current variance in copyright between EU member states over panoramafreiheit (freedom of panorama) make taking photographs of public buildings hard. This is why Wikimedia Commons does not have photos of the Eiffel Tower at night, nor of the Pompidou Centre, or the European Parliament building in Bruxelles. Guaranteeing freedom of panorama across all of Europe would make it easier for European citizens to freely share in de facto publicly available creative works. Lack of freedom of panorama makes the law look ludicrous and silly and destroys public respect for copyright law. —Tom Morris (talk) 13:19, 9 January 2014 (UTC)
  • I agree that this is a problem, but I think it is not quite what this question is trying to get at. I will try to make sure FOP is mentioned elsewhere. -LVilla (WMF) (talk) 04:58, 31 January 2014 (UTC)
• A lot of concepts in our thinking that we want to share originate in copyrighted materials. Therefore we are limited in sharing of this ideas. There are many examples where a well known idea or concept can't be visually presented, as anything related to the topic is a subject of copyright or design pattern (in USA). Even today we mention frequently Klingons, Morlocks, Kobyashi Maru, or phrases like "I'm sorry Dave, I'm afraid I can't do that" out of the original context - as these topics took a direction of their own. We have them in our minds but we are forbidden to use them in the digital world because of copyright. --Aktron (talk) 18:20, 15 January 2014 (UTC)

Proposed Foundation answer

Based on Aktron's comment and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response:

Yes.

Note that we object strenously to the conflation of "user-generated content" with "pre-existing content" - many users, including the users who create Wikipedia, create and publish vast amounts of content that is as original and creative as the content created by the traditional copyright industries. At the same time, non-"users" (such as Disney) regularly produce works that are based on pre-existing works. To assume that users only generate content that is remixed badly misunderstands the nature of modern broadly-distributed creativity, and unfairly tilts the playing field for copyright reform.

As an American organization, our organization does not generally have substantial problems when our users use pre-existing works to create and disseminate new content, since we can rely on fair use and strong safe harbor protections. However, many of our users, particularly Europeans, report that because of the weak exceptions in this area, and the differences between Member States, it is difficult for them to understand what is and is not permitted. As a result, they find it difficult under EU law to create and share information that could even be alleged to be a remix or mashup of pre-existing works.

Question 59

59) (a) [In particular if you are an end user/consumer or a right holder:] Have you experienced problems when trying to ensure that the work you have created (on the basis of pre-existing works) is properly identified for online use? Are proprietary systems sufficient in this context?

(b) [In particular if you are a service provider:] Do you provide possibilities for users that are publishing/disseminating the works they have created (on the basis of pre-existing works) through your service to properly identify these works for online use?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes or no, please explain.

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 05:23, 31 January 2014 (UTC)

Yes.

Works created by our users and published through our site have extensive license information and metadata, allowing others to easily and reliably reuse this information. However, in some cases we have had to deal with some complexity when works from other sources are included in Wikimedia projects, because there are no agreed-upon standards for properly identifying those materials. As a result, solutions may be inconsistent.

Question 60

60) (a) [In particular if you are an end user/consumer or a right holder):] Have you experienced problems when trying to be remunerated for the use of the work you have created (on the basis of pre-existing works)?

(b) [In particular if you are a service provider:] Do you provide remuneration schemes for users publishing/disseminating the works they have created (on the basis of pre-existing works) through your service?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes or no, please explain.

• ...

Proposed Foundation answer

Based on the C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 05:28, 31 January 2014 (UTC)

No.

Our materials are provided under a license that allows for no-cost use, so we do not typically have problems with remuneration. (Users and redistributors who wish to charge for the materials are permitted to handle remuneration themselves.)

Note that as a general matter remuneration is a secondary concern. The existence of Wikipedia and vast amounts of other creative, critical user-generated content despite the difficulty of remuneration suggests that the law should work to enable unremunerated creativity, not only paid creativity.

Question 61

61) If there are problems, how would they best be solved?

Responses

[Open question]

• ...

Proposed Foundation answer

Based on the lack of comments and lack of obvious answers, I have not answered this question at this time. However, it seems like it could be fruitfully answered by someone with more familiarity with EU copyright exceptions and proposals to reform them in favor of increased fair use. -LVilla (WMF) (talk) 05:31, 31 January 2014 (UTC)

Question 62

62) If your view is that a legislative solution is needed, what would be its main elements? Which activities should be covered and under what conditions?

Responses

[Open question]

• Non-commercial use of works should be free since the day a work is published. --NaBUru38 (talk) 14:43, 11 January 2014 (UTC)
  • Given our general commitment to support all use (commercial and non-commercial) I don't think this is an appropriate position to take. I'm open to discussion, though. -LVilla (WMF) (talk) 05:32, 31 January 2014 (UTC)
• ...

Proposed Foundation answer

Based on the C4C suggestions, I propose the following answer for the official Foundation response. While I realize that fair use (essentially, C4C's position) is far from ideal as a system, it would surely improve upon the current situation, especially if made consistent across the member states: —LVilla (WMF) (talk) 05:38, 31 January 2014 (UTC)

The main elements of such a system would be to make the current list of exceptions mandatory across all Member States and specify that the list is informative but not exhaustive, along the lines of the U.S. interpretation of fair use. This would be more flexible and forward-thinking than the current system, and as a result, would address key concerns related to remixed and amateur content by reducing uncertainty and expanding the scope for creativity.

Question 63

63) If your view is that a different solution is needed, what would it be?

Responses

[Open question]

• A quick comment: we shouldn't invent new terms when we've had others for decades. All content is generated by some kind of user. This section should be described as concerning amateur works, that is, works created by people who expect insignificant or no economic benefits from their works. --NaBUru38 (talk) 14:45, 11 January 2014 (UTC)
  • As I noted above, that's not the right term either, given the questions they are asking. Very frustrating that they've got the terminology so wrong. -LVilla (WMF) (talk) 05:33, 31 January 2014 (UTC)
• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —

As noted above in question 58, this section confusingly mixes the notion of user-generated content (which often does not reuse the protected content of others) with the notion of remix (which is often performed by commercial entities). So one key step to solving the problem would be to use more precise terminology, so that problems could be more accurately assessed.

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